Licence Appeal Tribunal File Number: 23-011819/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Thi Thao Trang Luu
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Piera A Segreto, Counsel
For the Respondent: Thomas Petrella, Counsel
HEARD: By way of written submissions
OVERVIEW
1Thi Thao Trang Luu, the applicant, was involved in an automobile accident on December 14, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Are the applicant's impairments predominantly minor as defined in s. 3 of the Schedule and subject to the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to the physiotherapy treatment plan/ OCF-18 (“plan”) dated July 25, 2023, in the amount of $4,450.79?
iii. Is the applicant entitled to the treatment plan for a psychological assessment dated January 25, 2023, in the amount of $2,020.37?
iv. Is the applicant entitled to a special award under s. 10 of Reg. 664?
v. Is the applicant entitled to interest on overdue benefits?
vi. Is the applicant entitled to costs?
RESULT
3For the reasons below, I find that:
The applicant’s injuries are not predominantly minor, and therefore, she is entitled to treatment beyond the monetary limit of the MIG.
The applicant is entitled to the disputed treatment plans, with interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award or costs.
PROCEDURAL ISSUES
4The applicant submits that the respondent should not be able to rely on the log notes, and an adverse inference should be drawn due to the respondent’s late disclosure of the accident benefits file. In reply, the applicant further submits that the respondent should not be able to rely on the reports of Dr. Marc Mandel, dated July 6, 2023, and Dr. Sandhu, dated November 15, 2023, because the respondent failed to produce the referral letters and the Clinical Notes and Records (“CNR”s) associated with those assessments.
5For the reasons that follow, I do not find it appropriate to draw an adverse inference against the respondent. Although there was a delay in disclosing certain documents, I am not convinced this delay was intentional or harmful to the applicant’s response, nor indicative of bad faith. To draw an adverse inference, conduct must be shown as deliberate, significantly impairing the fairness of the proceedings, beyond mere procedural shortcomings. While noting the late disclosure, I will consider the reports of Dr. Mandel and Dr. Sandhu in my analysis. These documents are relevant to the dispute, and I will weigh them with the rest of the evidence, considering their content, consistency, and context.
6The applicant submits that the respondent failed to comply with the Tribunal Case Conference Report (the “CCRO”), which required the production of the accident benefit files, including the log notes and CNRS, within 60 days of the March 18, 2024, case conference. These materials were only disclosed at the time of the respondent’s submissions on October 21, 2024. The applicant argues that this non-compliance has resulted in procedural unfairness and prejudice, as she was unable to serve the award particulars or challenge the insurer's examination reports through cross-examination. The applicant requests that the Tribunal exclude the log notes and the reports of Dr. Mandel and Dr. Sandhu and invites the Tribunal to draw an adverse inference.
7The respondent acknowledges the delay but contends that the late productions did not prejudice the applicant’s ability to present her case. The respondent submits that no documents were intentionally withheld and that the adjuster’s notes contain no damaging information. The respondent argues that the Tribunal should consider the produced materials and denies any bad faith.
8I find that the respondent failed to comply with the Tribunal’s production order. The accident benefits file was produced on October 21, 2024, well beyond the 60-day deadline set by the CCRO. The explanation given for this delay is insufficient. The late production of key documents, including the accident benefits file and CNRs from Dr. Mandel and Dr. Sandhu, occurred either with the responding submissions or on the eve of the hearing. This timing restricted the applicant’s ability to effectively review and respond to the evidence, particularly regarding the psychological assessments.
9However, I decline to exclude the accident benefits file or the reports of Dr. Mandel and Dr. Sandhu. While the late disclosure is concerning, I am not satisfied that it was intentional or that it caused irreparable prejudice. The threshold for excluding evidence or drawing an adverse inference is high and requires a showing of deliberate or egregious conduct, which is not established in this case. Instead, I will consider the reports and the file in my analysis. Accordingly, I will weigh these documents considering the broader evidentiary context, including their content, consistency, and the opportunity the applicant had to respond.
ANALYSIS
Are the applicant’s injuries predominantly minor?
10I find that the applicant’s injuries are not primarily minor; therefore, the applicant is not held within the MIG monetary limit.
11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash-associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
12An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
13The applicant submits that she suffers from psychological impairments, including PTSD, adjustment disorder, and anxiety, which are excluded from the minor injury definition under the Schedule. She relies on reports from Dr. Knolly Hill, a psychologist, and Dr. Anh Nguyen, a family doctor, along with her affidavit evidence, to support her claim that her impairments fall outside the MIG.
14The respondent argues that the applicant sustained only soft tissue injuries, as confirmed by the assessments conducted by Dr. Marc Mandel, a psychologist, and Dr. Charanjit Sandhu, an internal medicine specialist. It disputes the presence of any accident-related psychological impairment and asserts that the applicant failed to meet the American Medical Association (AMA) Guides for chronic pain or demonstrate the reasonableness of treatment.
15I find that the applicant’s injuries are not primarily minor, as she has provided consistent and corroborated evidence from treating practitioners that documents psychological impairments resulting from the accident.
16Firstly, the CNRs from Dr. Nguyen, the applicant’s family physician, indicate that the applicant experiences stress (CNRs of December 22, 2023), difficulties sleeping, and nervousness (CNRs of December 16 and 30, 2022). These psychological impairments are consistent with the applicant’s explanations in their Affidavit dated May 7, 2024, where she stated that she is experiencing stress, fatigue, and anxiety since the accident. On December 30, 2022, Dr. Nguyen, the applicant's family doctor, provided a referral for a psychiatric assessment and treatment. This evidence substantiates that the applicant has been experiencing psychological difficulties following the accident and beyond.
17Secondly, in Dr. Hill’s report dated January 11, 2023, he stated that the applicant has increased irritability, anxiety, and stress, along with constant fatigue and disturbed sleep. Dr. Hill adds that his provisional diagnosis is that, as a result of the accident, the applicant is sustaining Adjustment Disorder with Mixed Anxiety and Depressed Mood, coupled with Specific Phobia, Situational Type (driver-related).
18Additionally, I note that during an assessment by Dr. Amena Syed, a neuropsychologist, on May 9, 2023, the evaluation was paused and could not be completed due to the applicant's fatigue. I find that this is consistent with the information provided in the applicant’s affidavit, as well as in the records of Dr. Nguyen and Dr. Hill, which document ongoing complaints of fatigue, cognitive difficulties, and reduced stamina. The fact that the applicant was unable to complete a structured assessment due to fatigue lends credibility to her reported symptoms and suggests a level of functional impairment that warrants further investigation and treatment. It also supports the applicant’s position that her impairments extend beyond the minor injury definition under the MIG.
19I place limited weight on Dr. Mandel’s psychological assessment report dated July 6, 2023, because the reviewed documents do not mention the family doctor’s CNRs, which are crucial for determining the applicant’s overall medical prognosis. I prefer the combination of Dr. Hill’s report and the CNRs from the applicant’s family doctor, as I find them more consistent regarding the applicant’s complaints because they provide a longitudinal view of the applicant’s symptoms, treatment history, and functional limitations, which aligns more closely with the applicant’s self-reported experiences and the objective medical evidence.
20I assign no weight to Dr. Sandhu’s report dated November 15, 2023, because it does not contribute meaningfully to the evaluation of the applicant’s psychological impairments, as it focuses solely on the applicant’s physical examination.
21I conclude that the applicant’s injuries fall outside the MIG, as they are, on a balance of probabilities, not primarily minor. In reaching this conclusion, I have considered both parties’ medical evidence on its merits. While the respondent relied on the IE report of Dr. Mandel, I assign limited weight to this report because it does not reference the family doctor’s CNRs, which are central to understanding the applicant’s psychological history and treatment trajectory.
22In contrast, I find the reports of Dr. Hill and the family doctor’s CNRs more persuasive. These documents consistently document symptoms of anxiety, sleep disturbance, and emotional distress that emerged shortly after the accident and persisted despite treatment. Dr. Hill’s report provides a detailed psychological assessment that links these impairments to the accident and outlines a treatment plan aimed at functional recovery.
23On a balance of probabilities, I am satisfied that the applicant has established a causal connection between the accident and the psychological impairments. The evidence indicates that these impairments are more than transient stress responses and have had a sustained impact on the applicant’s functioning, thus removing the applicant from the MIG.
Is the applicant entitled to the treatment and assessment plans?
24To receive payment for an OCF-18 under sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
25Regarding assessment plans, the purpose of an assessment is to determine whether a condition exists. The insured bears the onus of demonstrating that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
a) Treatment plan for physiotherapy services
26I find the treatment plan for physiotherapy services to be both reasonable and necessary.
27The treatment plan dated July 25, 2023, outlines physiotherapy services from Align Physio & Wellness Inc. for $4,450.59 and is signed by Dr. Michel Malatesta, a chiropractor. The plan’s goals are to achieve pain reduction, increase the range of motion, improve strength, and facilitate a return to normal living activities, pre-accident work activities, and modified work activities. The services proposed in the plan include 15 sessions of physical rehabilitation, 15 sessions of mobilization on multiple body sites, 15 sessions of manipulation, 15 sessions of back muscle stimulation, and 15 sessions of exercise.
28The applicant contends that the physiotherapy treatment plan is both reasonable and necessary. She relies on Dr. Malatesta’s clinical findings and Dr. Nguyen’s records. She further asserts that the respondent’s denial was untimely under s. 38(8) of the Schedule.
29The respondent contends that the proposed physiotherapy is neither reasonable nor necessary, citing Dr. Sandhu’s assessment findings and asserting that the applicant’s symptoms are consistent with minor injuries. The respondent challenges the sufficiency of the applicant’s evidence, emphasizing that no objective impairments were identified.
30I find that the proposed treatment plan dated July 25, 2023, is reasonable and necessary. This conclusion is based on more than just the applicant’s psychological impairments. Although the applicant has been removed from the MIG due to psychological injuries, I have also considered whether the proposed physical treatment, specifically 60 sessions of physiotherapy, is independently justified.
31The applicant reported ongoing pain in the left trapezius region to her family doctor, as documented in the CNRs dated from December 30, 2022, to December 22, 2023, and reiterated these complaints in her affidavit dated May 7, 2024. These symptoms have persisted despite prior treatment. Although the respondent argues that these physical complaints fall within the MIG, I find that the chronic nature and functional impact of the pain, particularly its interference with sleep and daily activities, support the need for continued physiotherapy.
32Furthermore, the treatment plan outlines specific functional goals, such as improved range of motion and pain reduction, which align with the applicant’s reported limitations. Based on the balance of probabilities, I am convinced that the proposed physical treatment is reasonable and necessary under the circumstances.
33I have also considered the cost-effectiveness and clinical appropriateness of the proposed treatment plan. The plan outlines 60 sessions of physiotherapy at a total cost of $4,450.59, which, while substantial, is not excessive given the applicant’s ongoing symptoms and functional limitations. The treatment goals—such as pain reduction, improved range of motion, and restoration of daily functioning—are consistent with best practices in musculoskeletal rehabilitation and align with the applicant’s reported impairments. There is no indication that less intensive or alternative treatments would be equally effective at this stage. Accordingly, I find that the treatment plan is proportionate in cost and clinically justified and, therefore, reasonable and necessary under the Schedule.
34The CNRs dated December 30, 2022, June 29, 2023, and December 22, 2023, from the applicant’s family doctor, indicate that the applicant continues to experience pain in her shoulder and neck. Dr. Hill’s report outlined that the applicant has struggled to complete certain household chores and self-care tasks independently since the accident due to her pain limitations. The same complaints were noted during the assessment by Dr Sandhu. Dr. Sandhu indicated in his report dated November 15, 2023, that the applicant experienced pain upon palpation of her left trapezius, which corroborates the applicant's reported pain. He adds that the focus of the applicant’s rehabilitation should be on an active exercise program. The disputed plan also aims to provide relief for the applicant through exercises and physical rehabilitation.
35I find that the applicant has demonstrated her need for the disputed treatment plan through the corroborating and contemporaneous medical evidence provided by her treating practitioners.
36Consequently, based on a balance of probabilities, I conclude that the applicant is entitled to the physiotherapy treatment plan, amounting to $4,450.79.
b) Psychological Assessment
37I find that the applicant is entitled to the treatment plan for psychological assessment.
38The treatment plan, dated January 11, 2023, pertains to a psychological assessment from Align Physio & Wellness Inc. for $2,020.37, and is signed by Ms. Mursal Srosh, a registered psychotherapist. The plan’s goals are to determine the applicant’s current psychological status, provide specific recommendations for necessary psychological support, facilitate a return to normal daily activities, and restore pre-accident levels of psychological functioning. The services outlined in the plan include a clinical diagnostic interview and psychological testing.
39The applicant contends that the proposed psychological assessment is both reasonable and necessary. Dr. Hill’s report reinforces the necessity for further evaluation.
40The respondent asserts that the psychological assessment is unnecessary and relies on Dr. Mandel’s report to support this conclusion. The respondent contends that the applicant has not fulfilled her burden to demonstrate an impairment that justifies such an assessment.
41I find that the applicant is entitled to the proposed psychological assessment, as the available medical evidence raises legitimate concerns that warrant further investigation. The family doctor’s CNR dated December 30, 2022, documents the applicant’s ongoing complaints of anxiety, sleep disturbances, and difficulty coping, which have not resolved with initial interventions. The treating psychologist’s report dated January 11, 2023, notes symptoms consistent with an adjustment disorder and recommends further evaluation to clarify the diagnosis and treatment needs. Although Dr. Amena Syed’s assessment was incomplete, her preliminary observations indicated signs of emotional dysregulation and difficulty concentrating. Furthermore, during the IE conducted by Dr. Mandel, the applicant reported persistent psychological symptoms, including irritability and social withdrawal. Taken together, these sources provide a consistent pattern of psychological distress that, on a balance of probabilities, justifies the need for a more comprehensive psychological assessment.
42As explained in paragraphs 19 and 20 above, I assign less weight to Dr. Mandel’s report due to its limited engagement with the applicant’s full clinical history, including the absence of reference to the family doctor’s clinical notes and records. Dr. Mandel’s conclusions do not sufficiently address the applicant’s ongoing psychological symptoms or provide a persuasive basis to reject the proposed treatment plan. In contrast, the evidence from Dr. Hill and the applicant’s family physician is more comprehensive and consistent with the applicant’s reported symptoms. This evidence supports the need for further psychological assessment and treatment.
43Consequently, based on the balance of probabilities, I find that the applicant is entitled to the psychological assessment amounting to $2,020.37.
44In her submissions, the applicant emphasizes that the respondent failed to comply with the statutory deadlines under s. 38(8) and (11) of the Schedule. As I have found the treatment plans to be reasonable and necessary, I do not need to address the applicant’s s.38 arguments.
Interest
45Interest is applicable on any overdue benefits in accordance with s. 51 of the Schedule.
46Consequently, the applicant is entitled to receive interest on the overdue payments.
Costs
47The LAT Rule 19 permits the Tribunal to award costs where a party has acted unreasonably, frivolously, vexatiously, or in bad faith. However, the threshold for such a finding is high. The Tribunal must consider factors such as the seriousness of the misconduct, whether it breached a Tribunal order, whether it interfered with the Tribunal’s ability to conduct a fair and efficient process, and whether it caused prejudice to the other party.
48Importantly, not all procedural missteps or instances of unfairness reach the level of unreasonable conduct. A party’s failure to disclose documents in a timely manner may result in procedural unfairness, but unless it indicates a pattern of obstruction, bad faith, or deliberate disregard for the Tribunal’s process, it does not meet the Rule 19 threshold. In this case, although there were concerns about procedural fairness, I do not find that the respondent’s conduct was so egregious or disruptive as to warrant a cost award under Rule 19.
49The applicant is seeking costs, arguing that the respondent acted in bad faith and caused procedural unfairness.
50The respondent contends that its conduct does not meet the necessary threshold for a cost and denies any claims of bad faith.
51Although I find that the respondent’s conduct resulted in a degree of procedural unfairness (the late disclosure of key documents that limited the applicant’s ability to respond fully), I do not believe that this conduct meets the threshold for a cost award under Rule 19. The procedural unfairness was limited in scope and did not ultimately interfere with the Tribunal’s capacity to conduct a fair, efficient, and effective process. While the respondent’s delay breached the Tribunal’s production order, there is no evidence suggesting that the conduct was deliberate, persistent, or intended to obstruct the proceeding.
52In considering the factors under Rule 19, including the seriousness of the misconduct, the prejudice to the applicant, and the broader impact of a cost award on access to the Tribunal, I find that the respondent’s behaviour, while concerning, does not rise to the level of bad faith, vexatiousness, or unreasonableness required to justify a cost award.
53Therefore, the request for costs is denied.
Award
54Under section 10, the Tribunal may award up to 50% of the total benefits payable if it determines that an insurer has unreasonably withheld or delayed payment of those benefits. An award is deemed justified when the insurer's conduct is classified as unreasonable, which refers to behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. This has been established in cases such as 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT), and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration). The applicant has the burden of proof to demonstrate, on a balance of probabilities, that the respondent’s conduct meets this threshold.
55The applicant seeks an award due to the respondent’s repeated failures to comply with Tribunal orders, as well as unreasonable delays and denials of benefits. She claims these actions have caused her significant hardship.
56In response, the respondent denies any bad faith or unreasonable behaviour. It argues that the delays were not material and that there is no basis for an award.
57The applicant must demonstrate that the denial of benefits was unreasonable and that the respondent unreasonably withheld or delayed payment of benefits.
58Although the respondent disclosed some documents late, I do not find that this conduct meets the threshold for an award under section 10. As outlined in paragraph 54, an award is justified only when the insurer’s conduct is unreasonable in terms of being excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. In this case, while the delay may have caused some inconvenience, there is no evidence to suggest that it was deliberate, persistent, or part of a broader pattern of obstruction. The respondent ultimately complied with its disclosure obligations, and the delay did not materially prejudice the applicant’s ability to present their case. Accordingly, I find that the conduct does not rise to the level of unreasonableness required to justify an award.
59In conclusion, although the respondent’s conduct in disclosing documents late was not ideal, it does not meet the high threshold of unreasonableness required for an award under section 10 of the Schedule. The conduct was not excessive, immoderate, or indicative of bad faith. There is no evidence that the delay was intentional or that it significantly impaired the fairness of the proceeding. As such, I find that an award is not warranted in this case.
60Therefore, the applicant is not entitled to an award.
ORDER
61For the reasons outlined above, I find that:
i. The applicant’s injuries are not predominantly minor, and therefore, she is entitled to treatment beyond the monetary limit of the MIG.
ii. The applicant is entitled to the disputed treatment plans, with interest pursuant to s. 51 of the Schedule.
iii. The applicant is not entitled to an award or costs.
Released: June 6, 2025
Harouna Saley Sidibé
Adjudicator